Thursday, May 31, 2007

New Release: Iacobucci Inquiry

As expected Iacobucci ,in keeping with the description of the inquiry as primarily private and internal in the terms of reference, has decided that most of the hearings will be in private (in camera and ex parte). However, he also has turned down the lawyers for the three: Almaki, El-Maati, and Nureddin that they (the lawyers) be security cleared and allowed to attend the hearings. They will only be able to present documents and suggest questions etc. It is not clear what information they will be given about the hearings if any. In fact I just wonder what if anything the public will hear as the hearings are ongoing. All in all the hearings may be transparent to the elite group from Torys LLP who will be present at the hearings but to no one else. Just trust the creme de la creme to inform us of all the shit that goes on in our intelligence services.

Attention News Editors:

Commissioner Frank Iacobucci Issues Key Ruling on Inquiry's Proceedings OTTAWA, May 31 /CNW Telbec/ - The Honourable Frank Iacobucci, theCommissioner appointed to conduct the Internal Inquiry into the Actions ofCanadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati andMuayyed Nureddin, today released his ruling concerning the manner in which theInternal Inquiry will proceed. The ruling addresses a series of questions relating to the Inquiry'sTerms of Reference and draft Rules of Procedure and Practice on which theCommissioner invited submissions from the individuals and organizationsgranted an opportunity to participate in the Inquiry. These submissions weremade at a public hearing last month.

Background

The Inquiry was established following the recommendation in the ArarCommission Report calling for a review of the cases of Messrs. Almalki,Elmaati and Nureddin through a different process than a full-scale publicinquiry. The Report observed that there are more appropriate ways toinvestigate and report on cases where national security confidentiality mustplay a prominent role. The Inquiry's Terms of Reference specifically requirethat the Commissioner take all steps necessary to ensure that the Inquiry isconducted in private, while authorizing him to conduct specific portions ofthe Inquiry in public if he is satisfied that it is essential to ensure theeffective conduct of the Inquiry.

Mistreatment and torture

One of the questions that the Terms of Reference mandate the Commissionerto determine is whether any mistreatment of Messrs. Almalki, Elmaati andNureddin in Syria or Egypt resulted, directly or indirectly, from actions ofCanadian officials. The Commissioner asked the participants for submissions onthe meaning of "any mistreatment" and on whether it is necessary, in order forthe Commissioner to carry out his mandate, for him to decide whether, and theextent to which, Mr. Almalki, Mr. Elmaati and Mr. Nureddin were tortured inSyria and Egypt. The Commissioner ruled that the term "any mistreatment" should beinterpreted broadly. He also ruled that "it is proper and appropriate for theInquiry to ascertain whether the three individuals were tortured as a specificaspect of their alleged mistreatment" (para. 66). Making this determination,he concluded, is necessary in order to assess whether there were deficienciesin the actions of Canadian officials. It is also important from the standpointof the public interest (para. 67).

Conduct of the Inquiry

The Commissioner also asked for submissions on what the Terms ofReference mean in requiring him to take all steps necessary to ensure that theInquiry is conducted in private, and on how he should exercise his authorityto conduct specific portions of the Inquiry in public if he is satisfied thatdoing so is essential to ensure the effective conduct of the Inquiry. The Commissioner ruled, taking into account the requirements of the Termsof Reference, the need to protect national security confidentiality andconsiderations of workability and practicality, that the formal hearingsconducted as part of the Inquiry will as a general rule be conducted inprivate, a term that he interpreted to mean, in the context of the Inquiry, incamera and ex parte (para. 72). This would among other things avoid disputesover what information can and cannot be disclosed, that "as experience in theArar Inquiry demonstrated, cause significant delay and complexity". TheCommissioner stated, "It would serve no one's interest if the process of theInquiry impeded it from an expeditious determination of the questions that Ihave been mandated to pursue" (para. 60). However, the Commissioner emphasized that he "will be sensitive to thepotential of overbroad assertions of national security confidentiality and notlet that become a shield to prevent the Inquiry from doing the necessary workto fulfill its mandate" (para. 45). He noted that the Government is providingthe Inquiry with all relevant documents without any editing for nationalsecurity confidentiality, that the Inquiry has the power to subpoena witnessesand documents to obtain relevant information and that "the requirement in theTerms of Reference for a report on the completion of the work of the Inquiryoperates to ensure that the Commissioner is accountable to review all therelevant evidence and to arrive at conclusions that are based on that evidencein order to successfully complete the role that has been assigned to theInquiry" (para. 46). He also stated that his determinations to conduct publichearings "will be ultimately a discretionary decision, to be made on acase-by-case basis, influenced by the need for a blending of efficiency andtransparency dictated by the circumstances and the context" (para. 72).

Participation

The Commissioner also asked for submissions on how individuals andorganizations and individuals granted status as participants could effectivelyparticipate in the work of the Inquiry if hearings were held in private. TheCommissioner's ruling instructs Inquiry counsel, as was done in the ArarInquiry, to maintain regular contact with counsel for the participants,especially counsel for Messrs. Almalki, Elmaati and Nureddin, and invites andencourages counsel for the three individuals, in particular, to suggestquestions and lines of inquiry to pursue in interviews and hearings that areheld in private. This will help ensure, the Commissioner stated, that "we arenot leaving any stone unturned as we pursue our mandate" (para. 72). The Commissioner concluded that it would not be workable to accept thesuggestion of counsel for the three individuals that they be security-clearedand be permitted to attend any private hearing on giving an undertaking not todisclose any sensitive information to their clients. The Commissioner added,"I am not convinced as a practical matter that this arrangement would assistMessrs. Almalki, Elmaati and Nureddin or the Inquiry in carrying out its work"(para 58). While stressing the need to carry out the work of the Inquiry effectivelyand expeditiously, the Commissioner also underlined the need for flexibility,and stated that the ruling should not be seen as cast in stone, but that hewould be prepared to modify it if a fuller understanding of the facts andbackground information calls for modification. He thanked counsel for theparticipants and intervenors for their submissions on the questions he hadposed. The Inquiry is completing the process of reviewing the thousands ofdocuments that have been produced to it. It intends to begin interviewingofficials and former officials from the Canadian Security IntelligenceService, the Royal Canadian Mounted Police and the Department of ForeignAffairs and International Trade in June. John Laskin, lead counsel to theInquiry, stated: "As the Inquiry proceeds to the next phase, we look forwardto continuing to work closely with counsel for the participants, especiallycounsel for the three individuals, in helping the Commissioner get to thebottom of what occurred." The complete text of the ruling is available on the Inquiry's website,www.iacobucciinquiry.ca.

Established under Part I of the Inquiries Act by the Minister of PublicSafety, the Commissioner's mandate is to determine whether the detention ofthese three individuals in Syria or Egypt resulted from actions of Canadianofficials, particularly in relation to the sharing of information with foreigncountries; those actions or the actions of Canadian consular officials weredeficient in these cases and whether any mistreatment of these threeindividuals in Syria or Egypt resulted from deficiencies in the actions ofCanadian officials.